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Weekly Update Volume 32, Issue 31

11/04/2002

LITIGATION

Note: The cases listed are available from the ELR Document Service.

CERCLA, CLEANUP COSTS, CONTRIBUTION, PRPs:

The Second Circuit affirmed a district court's allocation of CERCLA response costs between municipalities and two corporate coalitions, but vacated the court's award of pre- and post-judgment interest to one coalition and lump sum award of future recovery costs to the other coalition. The district court gave the appropriate deference to a special master's recommendation and did not abuse its discretion in allocating contribution shares among the municipalities. The court did not err in supplementing the master's findings on the volume of municipal solid waste (MSW) disposed of by the municipalities. The court is not powerless to make findings of fact, and the master's failure to render any findings on the volume of waste the municipalities dumped is not tantamount to a factual determination that the coalitions did not carry their burden of proof on this issue. Additionally, the court did not err by preferring the coalitions' estimates of the volume of waste each municipality dumped over the municipalities' own estimates. Moreover, the court did not improperly ignore the master's finding that MSW will not necessarily comport with a national profile in terms of the hazardous waste contained therein; did not fail to account for sorting and separation policies adopted by the municipalities that supposedly reduced the amount of hazardous substances in their MSW; and gave appropriate deference to the master's findings regarding the relative mobility and releaseability of the parties' waste. Further, the district court properly determined the net recoverable response costs for one coalition against which the municipalities' percentage contribution shares were assessed and did not allow that coalition to recover attorneys fees. The court, however, erred by not awarding that coalition compound prejudgment interest on the response costs for which the court held the municipalities liable. The court's award of post-judgment interest was also erroneous; therefore, these issues were remanded. The court also erred by awarding the other coalition a lump sum payment allocated among the various municipalities, representing the future discounted contingent operations and maintenance costs for the site. Thus, that portion of the case was also remanded so that a declaratory judgment dividing future response costs may be issued. Goodrich Corp. v. Town of Middlebury, Nos. 01-6014 et al. (2d Cir. Oct. 29, 2002) (31 pp.).

CERCLA, RESPONSE COSTS, INTERVENTION:

The Ninth Circuit held that a district court did not abuse its discretion in denying cities' motion to intervene in a CERCLA cleanup case. The motion to intervene was made more than six years after litigation commenced and on the same day that oil companies responsible for the contamination and a state environmental agency had entered a consent decree. Additionally, the district court properly found that the parties would be prejudiced by the cities' intervention because intervention at the final stage of the action would unnecessarily prolong the litigation, threaten the parties' settlement, and further delay cleanup and development of the landfill. Further, the cities' argument that they could not have determined that the consent decree between the oil companies and the state environmental agency would affect their interests until they were notified of the terms of the decree is unpersuasive. When the oil companies notified the cities in 1999 that the companies believed the cities were responsible for recovery costs with respect to the landfill, and provided some evidence to support their belief, the cities should have realized that the negotiations could result in a consent decree allowing the oil companies to look to the cities for contribution. The cities also should have known that the risks of waiting included possible denial of their motions to intervene as untimely. Moreover, because the cities are not parties to this litigation and do not assert any extraordinary circumstances, they cannot appeal the district court's approval of the consent decree. California Department of Toxic Substances Control v. Commercial Realty Projects, Inc., Nos. 01-55630 et al. (9th Cir. Oct. 25, 2002) (15 pp.).

TRANSFER OF VENUE, SURPLUS FEDERAL PROPERTY, NEPA, CAA:

A district court granted the government's transfer of venue motion in a case brought by aviation groups challenging the government's decision designating a Marine Corps air station in California for a park with mixed use development. The groups brought the case challenging the government's compliance with NEPA and the CAA in the U.S. District Court for the District of Columbia. The government sought to transfer the case to the U.S. District Court for the Central District of California. It is beyond dispute that venue is proper in the Central District of California because the claim involves disposal of surplus federal property that is located in the Central District. Although deference is usually given to the plaintiff in determining whether a transfer of venue is justified, that deference is diminished where, as here, transfer is sought to plaintiffs' resident forum, plaintiffs have substantial ties to the forum and the subject matter of the lawsuit is connected to that state, and the choice of forum has no meaningful ties to the controversy and no particular interest in the parties or subject matter. Additionally, the issues raised by this lawsuit are of great concern to the residents of Orange County, and while the convenience of witnesses is likely to be of no relevance since this is a review of an administrative record, the location of the voluminous administrative record--estimated to be over 100,000 pages--in California is significant. Further, the interests of justice strongly mitigate in favor of transfer. The disposition and future use of the air station will have a profound effect on the local environment and the use of local resources. Therefore, the government's motion to transfer venue was granted. Airport Working Group of Orange County, Inc. v. United States Department of Defense, No. 02-1220 (ESH) (D.D.C. Oct. 22, 2002) (Huvelle, J.) (11 pp.).

RCRA, LANDFILL, ABSTENTION, TYPE OF WASTE:

A district court held that it did not need to abstain from hearing an environmental group's motion seeking declaratory and injunctive relief against a landfill operator that violated its state permit and subjected itself to classification as a municipal solid waste landfill under RCRA by accepting wastes other than those allowed for in its permit. The present action does not interfere with any present or future action in which the landfill may be involved with the state environmental agency regarding the landfill's permit. The environmental group simply asserted that the landfill has subjected itself to RCRA and violated its permit, and a decision by the court will not impinge on the state's regulatory system. Additionally, dismissal of the environmental group's claim is inappropriate. By asserting that the landfill accepts household trash and other wastes outside those allowed in its permit, the group made a claim upon which relief can be granted. Oakville Community Action Group v. Industrial Pipe, Inc., No. 02-1258 (E.D. La. Oct. 8, 2002) (Porteous, J.) (10 pp.) (Counsel for the plaintiff included law student practitioner Alison Kirshner of the Tulane Environmental Law Clinic in New Orleans, LA.).

SOUTHERN CALIFORNIA NATIONAL FORESTS, PARKING FEE:

The Ninth Circuit upheld the U.S. Forest Service's imposition of a recreational fee on an individual who was cited for failing to pay the parking fee required for recreational purposes in the Southern California National Forests. The Service's decision to designate all four National Forests in Southern California as one area is not contrary to congressional intent. Additionally, there is no conflict between the Recreational Fee Demonstration Program and the implementing statute; the program expressly provides for the collection of fees notwithstanding any other provision of law. Further, there is no evidence that Congress intended the area selection requirements in the statute to apply to fee demonstration areas under the program. Moreover, in light of the detailed language governing how the program is to operate, there are clear principles set forth to guide the Service and no impermissible delegation of power to the Service. The court, however, remanded the case for the limited purpose of directing the district court to amend the judgment to reflect a conviction for an infraction and not a Class B misdemeanor. United States v. Dahl, No. 01-50730 (9th Cir. Oct. 11, 2002) (3 pp.).

BUILDING PERMIT, DUE PROCESS, JURISDICTION:

The Second Circuit held that it lacked subject matter jurisdiction under the Rooker-Feldman doctrine to hear individuals' claim that their due process rights were violated when city officials terminated their building permit without first conducting a hearing or independent investigation on the validity of permit violation charges levied against them by the state environmental agency. In the second of two proceedings brought by the individuals in state court, the New York Supreme Court decided identical issues raised in the present suit, thereby depriving the Second Circuit of subject matter jurisdiction under the Rooker-Feldman doctrine. Although the state court decision was entered after a federal district court held that the individuals were collaterally estopped from litigating their due process claims as a result of the first state court proceeding, that is of no significance because the Rooker-Feldman doctrine implicates subject matter jurisdiction and must be applied by the court. The doctrine bars not only claims that would involve direct review of a state court decision, but also claims that are "inextricably intertwined" with a state court decision. Additionally, the individuals' claim does not involve a general constitutional challenge, which would place their case beyond the scope of the Rooker-Feldman doctrine. Further, while the individuals claimed that their state and federal cases sought different damages, the state court already ruled on the identical issues presented by the individuals' federal action and the individuals had a full and fair opportunity to litigate their claims. Fullerton Avenue Land Development, Ltd. v. Cianciulli, No. 01-7992 (2d Cir. Oct. 10, 2002) (4 pp.).

CERCLA, NEPA, CWA, SEDIMENT REMEDIATION AND CLEANUP:

The Ninth Circuit affirmed a district court's dismissal of individuals' CERCLA and NEPA claims against local, state, and federal agencies arising from a sediment remediation and cleanup project in Olympia, Washington, but vacated the court's dismissal of the individuals' NEPA and CWA claims against the U.S. Army Corps of Engineers. The district court properly dismissed the individuals' CERCLA claims against EPA because the individuals failed to identify any non-discretionary act or duty that EPA allegedly failed to perform. Similarly, the district court properly dismissed the individuals' NEPA claims against state and local defendants because the overall environmental cleanup action did not constitute a major federal action. That finding also supports dismissal of the individuals' NEPA claims against the Agency for Toxic Substances and Disease Registry. The court's dismissal of the individuals' NEPA and CWA claims against the Corps, however, must be vacated and remanded. Although the individuals' claims were not ripe at the time of the court's decision, the individuals' claims may now be ripe because the Corps has issued the permit the individuals seek to challenge. Dierker v. Clarke, No. 01-36016 (9th Cir. Oct. 15, 2002) (2 pp.).

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA proposed to add chlorobromomethane to the list of controlled substances subject to the production and consumption controls under the Montreal Protocol on Substances that Deplete the Ozone Layer and the CAA. 67 FR 65916 (10/29/02).
  • EPA announced that it is requesting applications for essential use allowances, which provide exemptions to the production and import phaseout of ozone-depleting substances under the Montreal Protocol on Substances that Deplete the Ozone Layer, for years 2004 and 2005. 67 FR 66147 (10/30/02).
  • EPA announced the availability of a final document, Asthma Research Strategy, which serves to guide the planning of EPA research efforts led by the Office of Research and Development to address the significant issues of exposures, effects, risk assessment, and risk management of environmental pollutants relevant to asthma. 67 FR 66631 (11/1/02).
  • EPA entered into a proposed settlement in Weyerhaeuser Co. v. Whitman, No. 01-1122 (D.C. Cir.), which concerned the NESHAP for chemical recovery combustion sources at kraft, soda, sulfite, and stand-alone semichemical pulp mills whereby spent pulping liquors are thermally regenerated for reuse in the pulping process. 67 FR 65980 (10/29/02).
  • EPA redesignated the Northern Ada County, Idaho, carbon monoxide nonattainment area to attainment. 67 FR 65713 (10/28/02).
  • EPA redesignated the Yakima, Washington, "not classified" carbon monoxide nonattainment area to attainment. 67 FR 66555 (11/1/02).

CONTRACTORS:

  • EPA amended the EPA Acquisition Regulation to revise its policy and procedures regarding the evaluation of contractor performance. 67 FR 66342 (10/31/02).

DRINKING WATER:

  • EPA approved a revision to EPA Method 1631, which provides for the measurement of mercury in water by oxidation, purge and trap, and cold vapor atomic fluorescence spectrometry. 67 FR 65876 (10/29/02).
  • EPA approved the analytical method and an associated minimum reporting level to support the unregulated contaminant monitoring regulation's list 2 monitoring of aeromonas. 67 FR 65888 (10/29/02).

HAZARDOUS & SOLID WASTES:

  • EPA proposed to amend a variety of testing and monitoring requirements throughout the RCRA regulations. 67 FR 66251 (10/30/02).
  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Yonkelowitz Junkyard site in Hoopeston, Illinois. 67 FR 66631 (11/1/02).
  • EPA extended the expiration date from January 1, 2003, to January 1, 2006, for the interim authorization of Massachusetts' program for regulating cathode ray tubes under RCRA. 67 FR 66338 (10/31/02).

TRANSPORTATION:

  • DOT's Research and Special Programs Administration (RSPA) made changes to its July 12, 2002, final rule in which it amended the Hazardous Materials Regulations to require shippers and carriers to retain a copy of each hazardous material shipping paper, or an electronic image thereof, for a period of 375 days after the date the hazardous material is accepted by a carrier. 67 FR 66571 (11/1/02).
  • RSPA announced that it is proposing changes to its Hazardous Materials Incident Report. 67 FR 66598 (11/1/02).

WATER QUALITY:

  • EPA proposed to assess five class II penalty assessments of up to $137,500 each for NPDES violations at Pick Your Part Auto Wrecking facilities in Chula Vista, Santa Paula, Sun Valley, and Wilmington, California. 67 FR 66632 (11/1/02).
  • EPA entered into a consent agreement whereby the settling companies must pay a $35,004 settlement penalty to resolve CWA, CAA, EPCRA, and RCRA violations. 67 FR 66153 (10/30/02).
  • EPA issued two administrative complaints under the CWA in which it proposed to assess a civil penalty of up to $137,500 each against the defendants for authorizing the discharge of dredge or fill material into the San Luis Rey River in San Diego County, California, in 1998 and 1999 without a CWA §404 permit. 67 FR 66152, 67 FR 66152 (10/30/02).

WILDLIFE:

  • EPA announced the availability of the Draft Chesapeake Bay Comprehensive Oyster Management Plan. 67 FR 65791 (10/28/02).

WORKER SAFETY:

  • OSHA proposed to revise a number of health provisions in its standards for general industry, shipyard employment, and construction. 67 FR 66493 (10/31/02).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Union Pacific Railroad Co., No. 8:02-cv-483 (D. Neb. Oct. 17, 2002). Settling CERCLA defendants that are past owners of the Bruno Agricultural Coop/Associated Properties Site in Bruno, Nebraska, must implement and maintain the EPA-selected remedy to address groundwater contamination, must restore a municipal drinking water well, must fund one-half of the remedy cost, and must reimburse a specified amount of EPA response costs incurred at the site; the USDA, which formerly operated the site, also will fund one-half of the remedy cost and reimburse specified costs previously incurred by EPA. 67 FR 66416 (10/31/02).

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved. 

THE CONGRESS

BILLS INTRODUCED

  • H.R. 5698 (Thompson. R-Cal.) (Klamath River basin) would establish water conservation and habitat restoration programs in the Klamath River basin and would provide emergency disaster assistance to fishermen, Native American tribes, small businesses, and others that suffer economic harm from the devastating effects of the Klamath River basin fish kill of 2002. 148 Cong. Rec. H8041 (daily ed. Oct. 28, 2002). The bill was referred to the Committee on Resources.

  • H.R. 5699 (Farr, D-Cal.) (historic preservation) would support the efforts of the California Missions Foundation to restore and repair the Spanish colonial and mission-era missions in California and would preserve the artworks and artifacts of these missions. 148 Cong. Rec. H8041 (daily ed. OCt. 28, 2002). The bill was referred to the Committee on Resources.

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved. 

IN THE STATES

To see archived versions of State UPDATE, please go to the State UPDATE section of the UPDATE archive.

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

GENERAL:

  • The first Bishkek Global Mountain Summit was held in Kyrgyzstan. The purposes of the event were to increase awareness of the importance of mountain regions and to discuss the effect of climate change on mountainous areas. See http://www.globalmountainsummit.org
  • In advance of the summit, the U.N. Environment Program released a study describing risks
    posed to mountainous regions from development. See http://www.unep-wcmc.org/mountains/mountain_watch/
  • New data indicates that 2002 is the second-worst year on record for coral reef bleaching events. Over 400 episodes have been recorded to date. Most of the bleaching incidents occurred at the Great Barrier Reef in Australia, but Belize, Japan, Malaysia, the Philippines, and the United States are among the 20 countries that have experienced more than 430 bleaching cases this year.
  • The reinsurer Munich Re said that natural disasters occuring during the first three quarters of the year had resulted in economic losses of totalling $56 billion and warned that the 2002 total could exceed $70 billion. See http://www.munichre.com/index.html
  • New Partnership for Africa's Development environment ministers met in Dakar, Senegal, to discuss sustainable development issues affecting Africa's coastal and marine areas.

CLIMATE CHANGE:

  • Canadian Prime Minister Jean Chretien reaffirmed his desire that Parliament ratify the Kyoto Procotol by the end of the year. There will not be a definitive plan next week or in a month," said Chretien. "It's a plan we must put in place for 2012, (and) we have 10 years to finalize all the elements of the plan . . . The time has come for us to make up our minds." He opposed the idea of further consultation with provincial leaders, saying that "this is federal jurisdiction. There will be a vote in the House of Commons. I'm meeting them in February." Nova Scotia's Premier, John Hamm, came out in opposition. Newfoundland and British Columbia said they would, along with Nova Scotia and Alberta, oppose ratification in the absence of additional consultation with the provinces. See http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1036024106211_54/?hub=Canada
  • At the U.N. Framework Convention on Climate Change (UNFCC) meeting in New Delhi, Indian Prime Minister Atal Behari Vajpayee said that developing countries should not be held to stringent Kyoto-related goals, noting that "per capita greenhouse gas emissions (of developing countries) are only a fraction of the world average and in order of magnitude below that of many developed countries." Developing countries will likely account for a majority of greenhouse gas emissions by 2020. See http://www.business-standard.com/today/story.asp?story=1540
  • A controversy arose at the meeting regarding the draft declaration's omission of any reference to the Protocol. "The European Union (EU) thinks the declaration is not strong enough," said spokesperson Michael Williams. The draft stated that "climate change and its adverse effects should be considered within the framework of sustainable development through enhanced international cooperation," but lacked any direct reference to the Protocol. Indian Environment Minister T.R. Baalu, the conference's president, said Kyoto was still on the
    agenda. "This conference is seeking a consensus to get the Kyoto Protocol ratified," he
    said. "I'll have negotiations and consultations and make whatever effort to make sure the
    protocol is ratified." China, the EU, and the Group of 77 developing countries were successful in getting a reference reinstated in the final document. See http://www.outlookindia.com/pti_news.asp?id=94261
  • Another dispute arose regarding Canada's proposal that credits be given for clean energy exports. The plan was opposed by the Group of 77. See http://economictimes.indiatimes.com/cms.dll/articleshow?artid=26107347
  • Harlan Watson, chief negotiator for the United States, affirmed the United States's opposition to ratification. In reply, Joke Waller-Hunter, executive secretary of the UNFCC, said that the United States probably would not achieve Kyoto limits in the absence of ratification. "If you look at the current policies taken in the U.S., it's unlikely the Kyoto [Protocol] targets will be met," Waller-Hunter said. "We should never exclude them [the United States] and hope for a more open attitude toward joining a common framework." Thomas Becker of the EU said "the U.S.A. has left the family. It's their decision, and we have to pay the bill for them. We in the EU have decided to go ahead with those who recognize that this [climate change] is a threat to the world."
  • Prices on the United Kingdom emissions trading market have doubled since the market started in April. See http://www.independent.co.uk/story.jsp?story=346128
  • The Pew Center on Global Climate Change issued a report, Climate Change Mitigation in Developing Countries: Brazil, China, India, Mexico, South Africa, and Turkey. See http://www.pewclimate.org/projects/dev_mitigation.cfm

Copyright© 2002, Environmental Law Institute, Washington, D.C. All rights reserved. 

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